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AGO Opinion 97027

Amendment FA125 to LB 280, Legitimization of Marriages Involving Underage Children Based Upon "Custom"
OPINION 97027

DATE: April 30, 1997

SUBJECT: Amendment FA125 to LB 280, Legitimization of Marriages Involving Underage Children Based Upon "Custom"

REQUESTED BY: Senator Don Wesely

Nebraska State Legislature

WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




LB 280 is a bill dealing with recognition of certain marriages

in Nebraska. The bill states that "[i]t is declared to be the

strong public policy of this state to recognize as valid only those

marriages from other states that are between one man and one

woman." In light of this policy, the bill would amend Neb. Rev.

Stat. § 42-103 (1993) to add marriages "when the parties are of the

same sex" to a listing of types of marriages which are void under

Nebraska law. The existing portions of § 42-103 currently void

certain marriages where there is a previous spouse living at the

time of the marriage, where one of the parties is mentally

incompetent, or where the parties are related in certain respects.

The bill would also amend Neb. Rev. Stat. § 42-117 (1993) to read:




All marriages contracted in any other country, state, or

territory, which would be valid by the laws of the

country, state or territory in which the same were

contracted shall be valid in all courts and places in

this state unless the marriage would be void under

section 42-103.






An amendment to LB 280 has now been proposed which would

further alter the bill's effect upon § 42-117. Amendment No. FA125

would amend LB 280 to insert the words "or customs" into the bill,

so that the proposed amendment to § 42-117 would read:




All marriages contracted in any other country, state, or

territory, which would be valid by the laws or customs of

the country, state or territory in which the same were

contracted shall be valid in all courts and places in

this state unless the marriage would be void under

section 42-103.




(language of Amendment No. FA125 emphasized). Your question goes

to the additional language for LB 280 proposed in Amendment No.

FA125.




In your opinion request letter, you note that there is a case

currently pending in Lancaster County in which "Iraqi parents . .

. forced their thirteen and fourteen year old daughters to marry

Iraqi men, aged 28 and 34." You go on to state that, "[t]he Iraqi

parents argued that such marriages were a custom in their country."

You then ask, "[w]ould [Amendment No. FA125] . . . provide them

[the Iraqi parents] protection to go forward with such a forced

marriage based on the fact that they claim it to be a custom of

their country?"




The word "customs" is not defined in either LB 280 or

Amendment No. FA125; nor is it defined in the statute which

contains general definitions for use with the Nebraska statutes.

See Neb. Rev. Stat. § 49-801 (1993). Therefore, when the word

"customs" is used in a statute, it must be given its plain and

ordinary meaning. Application of City of Grand Island 247 Neb.

446, 527 N.W.2d 864 (1995). In that regard, a "custom" is

generally defined as "a social convention carried on by tradition

and enforced by social disapproval of any violation" or "such

practices, collectively." WEBSTER'S NEW WORLD DICTIONARY 349 (2nd

college ed. 1982). Under that definition, it seems to us that it

would be possible to argue that a tradition or practice of arranged

or contracted marriages of young girls for religious or other

reasons in a particular country or culture would involve a "custom"

of that country or culture for purposes of the proposed amendment

to § 42-117 contained in FA125.




Neb. Rev. Stat. § 42-102 (1993) provides that individuals

wishing to marry in Nebraska must be at least seventeen years of

age. Since LB 280 and its proposed changes for § 42-117 apply only

to marriages "contracted in any other country, state, or

territory," we do not believe that the additional language proposed

for § 42-117 by Amendment No. FA125 would abrogate that age

requirement for a marriage arranged or contracted in Nebraska

simply on the basis of "custom." On the other hand, if the parents

of a young child contracted for his or her marriage in another

"country, state or territory" where the tradition and practice was

to arrange and contract for such marriages, the marriage under

those circumstances might well be valid in spite of § 42-102.




We would note that the Nebraska criminal statute dealing with

first degree sexual assault provides that:




Any person who subjects another person to sexual

penetration . . . (c) when the actor is nineteen years

of age or older and the victim is less than sixteen years

of age is guilty of sexual assault in the first degree.




There is nothing in that statute which creates an exception for

sexual relations with a person under sixteen years of age when the

relations occur within a "marriage." As a result, we believe that

an older spouse in a marriage contracted out of this state which

might be valid based upon "custom" would still be liable for

potential prosecution for first degree sexual assault should he or

she perpetrate sexual relations with his or her "spouse" under

sixteen years of age.




We would also point out that, even if Amendment No. FA125 to

LB 280 is passed, it would still be possible to argue that the

forced marriage of underage children to older spouses is so against

the strong policy of this state that such marriages are void. This

argument would be based, in part, upon the criminal statute cited

above, and also upon authority from other jurisdictions which holds

that no state is bound by comity to give effect in its courts to

the marriage laws of another state repugnant to its own laws and

policy. Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908 (1986);

State v. Austin, 234 S.E.2d 657 (1977).

Sincerely yours,




DON STENBERG

Attorney General




Dale A. Comer

Assistant Attorney General




Approved by:




Attorney General